Whether contractual woman employee is entitled to get maternity benefit?

 Though the view of the Division Bench of the Madhya Pradesh High Court is not binding on us, as the same has only persuasive value, we are nonetheless persuaded to accept the said view as we are in respectful agreement with the view taken. In this view of the matter, we hold that the petitioner, who is appointed as a Project Officer with respondent No. 2 on contractual basis on a consolidated monthly honorarium of Rs. 25,000/- per month is entitled to the maternity leave benefits of salary from 13th June, 2017 to 30th November, 2017.

29. In our opinion, therefore, the action of the respondents in denying the claim of the petitioner for grant of maternity benefits during her maternity leave period runs contrary to the legislative mandate flowing from the provisions of the said Act. Since this Court has already held that the benevolent object of grant of 180 days maternity leave to the woman employees cannot be and should not be limited to the women Government servants of the State of Maharashtra only, the same are also extended to the petitioner who is working as a Project Officer with the respondent No. 2 on contractual basis.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3491 of 2018

Decided On: 19.10.2018

Archana Nanabhau Dahifale  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and M.S. Karnik, JJ.

Citation: 2019(2) MHLJ 697

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When contractual employee is not entitled to get maternity leave?

The Petitioner was appointed   as a contractual employee
and the terms and conditions of her  appointment  were governed
by  the contract which she had signed on 2nd April, 2013. As  per
the said contract, she was eligible for  8 days  casual leave and 10
days of medical  leave. The Petitioner  preferred an application for
leave on 8th January, 2014 after  absenting  herself from duty from
30th  December,  2013 and  sought  medical  leave  for    period   of

three months as per   doctor's  advice. As a contractual employee
she was not entitled for medical leave of three months, which she
applied for. At the  relevant  time in her application she did not
claim  the said  leave  as maternity benefit on account of illness
arising out of  pregnancy. Her claim was for medical  leave which
she   was     not     entitled   as   per   terms     and   conditions   of     the
contract. In view of  her absenteeism  from 30th December, 2013
the  employer issued an order of termination with effect from date
of her absence  i.e. 30th December, 2013. The Petitioner  herself
has placed before us the documents  she  has sought under  the
Right     to   Information   Act,     pertaining     to   the   notings   of   the
department. Perusal of the note clearly reveal  that the Petitioner
had  absented herself  from duty  from 30th December, 2013 and
had sought medical leave   from 1st  January, 2014 to   7th  April,
2014 and since  she was working on contractual basis she was not
entitled for  three months maternity benefit. The said application
came to be rejected  with a   remark from Director that since the
Petitioner was   working on contractual basis, she is not entitled
for   leave of three   months and therefore, in absence   of   such
leave to her credit her absenteeism from 30th  November, 2013

without  availability  of leave period  necessitated  the department
to  terminate  the services of the Petitioner. It is further noted that
the  circular  which the Petitioner has referred to, was issued on
20th March, 2015 by which the  benefits  of the maternity  leave
were extended to the contractual   employees working   with the
Respondent­department,   however,     the   said   circular   does   not
operate   retrospectively and till the time of issuance of the said
circular the contractual employees were entitled   for a limited
casual leave and medical   leave during the period of   contract
which did not include the   maternity leave.   This   came to be
extended   to the contractual employees of the department   only
with   effect   from   20th  March,   2015.     The   Petitioner     cannot
therefore     claim     benefit of the said circular. The Petitioner
thereafter made various  representations  and sought extension of
benefit of the said Government Resolution  retrospectively  to her
case, however,  the same was turned down.
It is not  in  dispute that the law relating to maternity benefit
has been enacted to  achieve the object of securing  social  justice
to the women workers. However, it  has  also to be seen that when
a law operates  it has to   strike a balance  between the  individual

right and need of the orderly society. The Petitioner's appointment
was governed   by the terms  and conditions of the contract and
the same  was binding upon her. By virtue of the contract she was
not entitled for  maternity benefit  and  she was only  entitled for
medical leave for limited period. She absented  herself  and  after
one week submitted her leave application  with medical  certificate
and prayed for grant of leave for   three months   when at the
relevant time she was in the  very early stage of pregnancy. The
policy contained in the social legislation intends  to grant  benefit
to women  workers to  have a safe  pregnancy  and to  develop  a
bond with the child and nurture   the child   immediately   after
delivery,     expects   the   benefit     to   be   conferred   on   the   eve   of
delivery  of a child and therefore, it has  bifurcated  the period into
two terms namely   first   term, preceding the   delivery and the
second  term  post­delivery . However,  the said  benefit  is not
available  on the eve of pregnancy and the woman  is  not entitled
to claim the said benefit   since the time  when a woman conceives
and   during   her     entire     gestational     period.   If   the   maternity
benefit is to be conferred in  this manner, it would rather defeat
the whole purpose, since the employee  will  also have to look at it

from the angle of  running   the administration  and the woman
employees  may not claim such privilege  for  such  entire period
of   pregnancy,   but   necessarily     have   to   regulate   themselves   in
accordance   with   the   provisions   of   the   Maternity   Act.     In   any
contingency, the Petitioner   was not entitled for  extension of  the
benefits  of maternity leave in terms of her  order of appointment
and   she  is   not   entitled   to   claim    benefit     of   the   Government
Circular  dated 20th March, 2015, when her services were already
terminated with effect from 30th December, 2013. 
In view of the aforesaid  observations,  we are not  inclined
to  grant  the relief  as prayed by the Petitioner namely reinstating
the   Petitioner   till   completion   of   the   contractual   period   of
employment.
IN  THE HIGH  COURT OF JUDICATURE  AT BOMBAY 
CIVIL  APPELLATE JURISDICTION 
 WRIT PETITION NO.2402 OF 2016
Laxmi  Subhash  Yadav
V/s.
 Office  of Directorate
Through  Water and Sanitation
Support  Organization (WSSO)
Water Supply and Sanitation 
Department 
  CORAM :  S.C.DHARMADHIKARI AND
                SMT. BHARATI H.DANGRE, JJ.
  
                           Dated : 13th October 2017.

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Whether maternity leave can be granted to woman who secured child through surrogacy?

As rightly pointed out on behalf of the petitioner, there
is nothing in Rule 74 of the the Maharashtra Civil Services (Leave)
Rules, 1961, which would disentitle a woman, who has attained
motherhood through the surrogacy procedure to maternity leave.
Rule   74   provides   for   maternity   leave   to   a   female   government
employee.  We do not find anything in Rule 74 which disentitles
the petitioner to maternity leave, like any other female government
servant, only because she has attained motherhood through the
route of surrogacy procedure.   It is worthwhile to note that by the
Government Resolution dated 28.07.1995, maternity leave is not
only   provided   to   a   natural   mother   but   is   also   provided   to   an
adoptive mother, who adopts a child on its birth.  The only reason
for refusing maternity leave to the petitioner is that there is nothing
in   the   Government   Resolution,   dated   28.07.1995   for   providing
maternity   leave   to   the   mother   who   begets   the   child   through
surrogacy.     If   the   Government   Resolution,   dated   28.07.1995
provides maternity leave to an adoptive mother, it is difficult to
gauge why maternity leave should be refused to the mother, who
secures the child through surrogacy.   In our view, there cannot be
any   distinction   whatsoever   between   an   adoptive   mother   that
adopts a child and a mother that begets a child through a surrogate
mother, after implanting an embryo in the womb of the surrogate
mother.   In our view, the case of the mother who begets a child

through surrogacy procedure, by implanting an embryo created by
using either the eggs or sperm of the intended parents in the womb
of the surrogate mother, would stand on a better footing than the
case   of   an   adoptive   mother.       At   least,   there   cannot   be   any
distinction between the two.  Right to life under Article 21 of the
Constitution of India includes the right to motherhood and also the
right of every child to full development.   If the government can
provide maternity leave to an adoptive mother, it is difficult to
digest   the   refusal   on   the   part   of   the   Government   to   provide
maternity   leave   to   a   mother   who   begets   a   child   through   the
surrogacy procedure.  We do not find any propriety in the action on
the   part  of   the   Joint   Director  of   Higher   Education,  Nagpur,  of
rejecting the claim of the petitioner for maternity leave.  The action
of the respondent Nos. 1 to 3 is clearly   arbitrary, discriminatory
and   violative   of   the   provisions   of   Articles   14   and   21   of   the
Constitution   of   India.     It   is   useful   to   refer   to   the   unreported
judgment of the Delhi High Court in the case of  Rama Pande vs.
Union   of   India,   and   relied   on   by   the   learned   counsel   for   the
petitioner, in this regard.
9. Hence, for the reasons aforesaid, the writ petition is
allowed.     The   impugned   communication   dated   07.05.2015   is
quashed and set aside.  It is hereby declared that the petitioner is

entitled to the maternity leave for a period of one year from the
date of the birth of the child i.e. 04.12.2014. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO.  3288  OF  2015
Dr. Mrs. Hema Vijay Menon,

V
 State of Maharashtra,

  CORAM :  SMT. VASANTI A. NAIK &A.M. BADAR, JJ.
Dated:       JULY 22, 2015.

Citation: 2016(5) ALLMR622

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Bombay HC;Woman who obtains child through surrogacy is entitled to get maternity leave

The   learned   counsel   appearing   for   the   Petitioner   has
placed on record a Division Bench Judgment dated 22nd July 2015 of

this   Court   (Coram:   Smt   Vasanti   A.Naik   &   A.M.Badar,   JJ)   in   Writ
Petition No.3288 of 2015 (Dr.MRS HEMA VIJAY MENON VS STATE
OF MAHARASHTRA & ORS)  whereby it is specifically observed in
paragraph 7 as under :
“7. A woman cannot be discriminated as far as maternity benefits are
concerned, only on the ground that she has obtained the baby through
surrogacy. Though the petitioner did not give birth to the child, the child
was placed in the secured hands of the petitioner as soon as it was born. A
newly born child cannot be left at the mercy of others.  A maternity leave
to the commissioning mother like the petitioner would be necessary. A
newly born child needs rearing and that is the most crucial period during
which the child requires the care and attention of his mother. There is a
tremendous amount of learning that takes place in the first year of the
baby's life the baby learns a lot too,. Also the bond of affection has to be
developed.   A   mother,   as   already   stated   herein   above   wold   include   a
commissioning mother or a mother securing a child through surrogacy.
Any other interpretation would result in frustrating the object of providing
maternity leave to a mother who has begotten the child.”   
3.          Having considered even Rule 551 (C) and (E) of Child
Adoption Leave and Rules,  we find that a case is made out for grant
of interim relief in terms of prayer clause (b) as there is nothing in
Rule  551  (C)   and  (E)   as  referred   above,   which   would   dis­entitle
maternity leave to a women who has attained motherhood through
surrogacy procedure.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1727 OF 2015
Mrs Amisha Girish Ramchandani  .. Petitioner
vs
The Divisional Manager
(Personnel Branch) Mumbai CST

CORAM : ANOOP V. MOHTA &
                                                          G.S.KULKARNI, JJ.
 29 JANUARY, 2016.

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